Frequently Asked Questions About Students and Immigration

by Scott M. Borene*

1. What type of visa does a foreign national need to study in the U.S.?

There are several different immigration categories for foreign nationals who wish to study in the U.S. First, there is the F visa category for individuals entering the U.S. to pursue full-time academic studies whether they are an elementary school student or a doctoral candidate. Second, there is the M visa category for individuals entering the U.S. to engage in vocational or nonacademic programs of study. Finally, there is the J visa category for individuals pursuing academic studies or conducting research in the U.S. through an exchange visitor program approved by the U.S. Department of State.

2. How long can someone remain in the U.S. in a student immigration category?

An F student is authorized to remain in the U.S. for the “duration of status” which means through completion of the program of study. However, a student must remain enrolled in the program on a full-time basis and in furtherance of completion of the program. Students in M status pursuing nonacademic or vocational studies can only remain in the U.S. for one year or the length of the program, whichever is shorter. Finally, the authorized period of stay for J exchange visitors varies depending on the nature of the individual’s participation in the program – i.e. student, research scholar, teacher, etc. Many F and J students may remain legally in the United States for five years or more.

3. What is the process to apply for a student visa?

The process differs depending on the type of visa the individual is applying for. An individual seeking to enter on an F student visa must obtain Form I-20 from the academic institution which he or she plans to attend. Then, the individual should submit the Form I-20 along with a nonimmigrant visa application and all relevant supporting documents to a U.S. consulate in his or her home country. The process is the same for individuals applying for an M student visa. Individuals who seek to enter the U.S. on a J exchange visitor visa must obtain Form DS-2019 from an institution with an Exchange Visitor Program designated by the Department of State. Then, they must submit the Form DS-2019 with a nonimmigrant visa application and relevant supporting documents to a U.S. consulate in their home country.

4. What legal requirements or conditions must someone satisfy to be eligible for an F student visa?

An individual must (1) be enrolled in an academic education program at a school that is approved for attendance of foreign students (2) be enrolled in the academic program on a full-time basis with a full course of study (3) be proficient in English or be enrolled in a language course that will lead to proficiency in English (4) have sufficient funds to support him or herself during the entire duration of study (5) maintain a residence abroad that he or she has no intention of abandoning and (6) intend to the leave the U.S. upon completion of the program of study.

5. What legal requirements or conditions must someone satisfy to be eligible for a J exchange visitor visa?

An individual must intend to participate in an Exchange Visitor Program and maintain a residence abroad which he or she has no intention of abandoning. In addition, certain exchange visitors, whose program was financed in whole or in part by their country’s government or the U.S. government, or who are nationals of countries that the Department of State has determined clearly require the skills and services of people with that individual’s training, or who received graduate medical training in the U.S. while in J-1 status, are required to spend an aggregate of two years in their home country before being permitted to obtain Permanent Residence or an H-1 or L-1 Temporary Work Visa. Some individuals subject to the two-year home country residence requirement may be eligible to apply for a waiver of this requirement.

6. Can an individual work while in the U.S. in a student immigration status?

F and M students are generally not allowed to engage in off-campus employment during their course of study. In some instances, they can accept on-campus employment or curricular practical training off campus if approved by the school. Both F and M students are eligible for “optional practical training” after completion of the program of study. Optional Practical Training allows an individual to engage in employment in their field of study for a short duration after their studies are completed to gain experience. Students in the F category may remain in the U.S. for up to 12 months in practical training after the completion of their program of study. M students may only engage in practical training, or employment, one month for every 4 months of study completed with the total amount of time not to exceed 6 months. The general rule for J exchange visitors is that they are authorized to work incident to their status, but only for the sponsoring institution and within the guidelines of the program.

7. Can someone obtain an F visa to attend a public elementary or secondary school?

The general answer is no. An individual cannot obtain an F visa to attend a public elementary school or a public secondary school. The one exception is an individual attending a public secondary school who will reimburse the public school for the full cost of his or her education in advance and does not intend to remain in F status at the school for more than one year. A person cannot obtain an F visa to participate in a publicly funded adult education program either. Furthermore, one may not attend a private school and then transfer into a publicly funded school. Otherwise, attendance at a private or parochial elementary or secondary school is possible in the F-1 category.

8. Can someone in the F student category travel outside of the U.S.?

Yes. In addition, the individual must remain a full-time student in order to maintain their F status while in the U.S. Therefore, it is most likely that any travel abroad by an F student will take place over vacation breaks scheduled by the sponsoring school. Upon return to the United States after travel abroad, an F student should be prepared to show immigration officials his or her passport containing a valid F-1 visa, Form I-20 endorsed by the appropriate school official for travel, and proof of financial support.

9. Can someone transfer schools while in F student status?

Yes, as long as the student is currently in valid F status. The foreign student advisor of the current school must notify the U.S. Department of Homeland Security and the new school of the transfer.

11. Can the spouse or children of a student get visas to come to the U.S.?

Yes. The spouse and children (under the age of 21 years) of F-1 and M-1 students and J-1 exchange visitors may accompany them to the U.S. on F-2, M-2 and J-2 visas respectively. Each family member is required to submit a separate Form I-20 or DS-2019, issued in his or her own name, to the U.S. Consulate to apply for a visa.

12. Can the spouse or children of a student work in the U.S.?

The dependents of F-1 students and M-1 students are not allowed to work in the U.S. under any circumstances. The dependents of J-1 exchange visitors may apply for employment authorization from the U.S. Citizenship and Immigration Services so long as the employment is not for the purpose of supporting the J-1 spouse or parent. They may begin working only after they receive the employment authorization card.

13. Can the spouse or children of a student study in the U.S.?

The children of F-1 and M-1 students and J-1 exchange visitors may attend school full-time from kindergarten to twelfth grade. Dependents of F-1 and M-1 students may not engage in any full-time study beyond secondary school, but may engage in part-time avocational or recreational classes. Dependents of J-1 exchange visitors may engage in part-time or full-time study.

*Scott M. Borene is the Founder and Managing Attorney of Borene Law Firm, P. A. The immigration lawyers now with Borene Law Firm have more than 70 years of combined professional experience helping clients with U.S. and global visa and immigration projects. Scott Borene was selected by other lawyers as 2018 Lawyer of the Year in Immigration Law as noted by The Best Lawyers in America and Minnesota Monthly magazine. He has been repeatedly recognized as one of the Top 20 Lawyers in the World “most highly regarded by other lawyers” in corporate immigration law. He is listed in the Best Lawyers in America and acknowledged as an Immigration Law Super Lawyer. He is often called upon to act as an “expert’s expert” to advise other experienced immigration lawyers on complex immigration matters. Scott Borene is a past Director and a past Member of the Board of Governors of the American Immigration Lawyers Association (AILA), the world’s largest professional organization of immigration lawyers. In 2002, he was the founder and Conference Chair of AILA’s Global Immigration Summit in New York City, the world’s largest conference of global immigration lawyers. He has written many articles on immigration law and is a frequently invited expert speaker on immigration topics at AILA National Conferences and other major national and international legal conferences. He is the Editor-in-Chief of many leading professional reference books for immigration lawyers including The Global Immigration Guide: A Country-by-Country Survey and The Global Immigration Guide: Crossing Borders for Business, AILA’s most comprehensive books on Global Immigration. He served as Editor-in-Chief of Immigration Options for Academics and Researchers (2005), AILA’s leading Expert Occupational Handbook on immigration issues in higher education. He is the author of Dr. Yes – Some Practical Strategies for the Diagnosis and Treatment of Immigrant Visa Cases of Health Care Professionals. Scott Borene attended Harvard University in Cambridge, Massachusetts as a National Merit Scholar. After graduation from Harvard, he attended William Mitchell Law School in Minnesota. Scott Borene has more than 30 years of experience helping employers obtain work visas for key international talent. Scott Borene can be reached at sborene@borene.com.